SAPPHO & SAPPHO

[2020] FamCA 488

FAMILY COURT OF AUSTRALIA

SAPPHO & SAPPHO [2020] FamCA 488

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Lump sum – Where the wife seeks periodic spousal maintenance – Where the husband opposes the order – Where the wife has been the homemaker and primary carer of the children – Where the husband provided financially for the family – Where the wife is unable to adequately support herself – Where the husband’s expenses have been exceeding his income – Where the husband’s current and future income is unclear due to the impacts of COVID-19 on his profession – Where the husband has an appropriate source of funds from which the wife can receive lump sum spousal maintenance – Orders

FAMILY LAW – PROPERTY – Interim Distribution – Costs - Where the wife seeks litigation funding or a dollar for dollar order – Where the husband opposes the order – Where the wife has been unable to pay her legal fees – Where the husband has paid his legal fees – Where the property pool is modest – Where there is a financial disparity between the parties – Where the amount the wife seeks is not unreasonable and the amount she will ultimately receive will exceed it – Orders

FAMILY LAW- CHILDREN – With whom a child lives and spends time with – Where the children currently live with the wife and spend time with the father – Where the wife seeks an order that the husband must personally supervise the children when they are in his care in the school holidays– Where the husband intends that any occasion that others may care for the children when in his care will be of limited duration – Not in children’s best interests to make orders sought. 

Family Law Act 1975 (Cth) ss 60CC, 72(1)(b), 79, 80(1)(h)

Hall & Hall (2016) 257 CLR 490
Maroney & Maroney [2009] FamCAFC 45
McCrossen & McCrossen [2006] FLC 93-283

APPLICANT: Ms Sappho

RESPONDENT: Mr Sappho

FILE NUMBER: ADC 885 of 2020

DATE DELIVERED: 17 June 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 26 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: Clelands Lawyers Adelaide Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Cocks

SOLICITOR FOR THE RESPONDENT: Tindall Gask Bentley

Orders

1. That the husband do pay to the wife from monies withdrawn from the “Children’s Account” the sum of SIXTEEN THOUSAND TWO HUNDRED AND FIFTY THREE DOLLARS ($16,253) by way of lump sum spousal maintenance calculated at the rate of FIVE HUNDRED AND TWENTY ONE DOLLARS ($521) per week over a period of 31 weeks.

2. That on or before 30 days from the date of this order the husband do cause to be paid to the solicitors for the wife the sum of FIFTY THOUSAND DOLLARS ($50,000) by way of partial settlement of property (“the settlement sum”).

3. That in default of the payment of the settlement sum the parties will do all things necessary and sign all documents as may be required to forthwith place the property situate at B Street,  Suburb D in the State of South Australia (“the Suburb D property”) on the market for sale by public auction or private treaty upon such terms and conditions as the parties may agree and in the absence of agreement as may be ordered by this Honourable Court and that the net proceeds of sale shall be disbursed as follows:-

   (a)       FIFTY THOUSAND DOLLARS ($50,000) to be paid to the wife;

   (b)       FIFTY THOUSAND DOLLARS ($50,000) to be paid to the husband;

   (c)The balance (if any) remaining shall be placed in an interest bearing account in the joint names of the parties pending further order of the Court or the joint written consent of the parties.

4. That upon the further agreement of the parties, they will jointly instruct E Group to value the following properties:-

   (a)       F Street, Suburb G SA (“the Suburb G property”);

   (b)       B Street, Suburb D SA (“the Suburb D property”);

   (c)H Street, Suburb D SA (“the Suburb D property”);

   (d)J Street, Suburb K SA (“the Suburb K property”);

   (e)Unit L Street, Adelaide SA (“the Adelaide property”).

5. That upon the agreement of the parties they will jointly instruct CC Group to value the property at M Street, Suburb N SA (“the Suburb N property”).

6. That upon the agreement of the parties they will jointly instruct O Pty Ltd to value the husband’s interest in the Mr Sappho Group of Companies.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sappho & Sappho has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 885 of 2020

Ms Sappho

Applicant

And

Mr Sappho

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By Initiating Application filed 28 February 2020, Ms Sappho (“the wife”) seeks interim and final parenting orders in respect of X born … 2010 and Y born … 2012 (collectively “the children”) and for orders by way of settlement of property and spousal maintenance.

2. By Response to Initiating Application filed 21 April 2020 Mr Sappho (“the husband”) opposes the orders sought by the wife.

3. The interim proceedings came before the Court on 24 April 2020.  The parties were able to agree orders in respect of the ongoing parenting arrangements for the children, child support, property injunctions and by way of spousal maintenance the payment of specified expenses.

4. The balance of the interim proceedings namely paragraphs 4.6, 5, 10.5, 11, 12, 14, 15, 16, 17, 18 and 19 of the wife’s interim orders sought and paragraph 2.2 of the husband’s interim orders sought were adjourned for argument to 25 May 2020.

5. The parties were able to agree paragraph 4.6 of the wife’s interim application concerning the time the children would spend with the father during the short term school holidays and the wife conceded that in respect of paragraph 5, the requirement that he personally supervise the children at all times was limited to the extended periods over the school holidays.

6. The following matters remained for determination:-

   (1)Periodic spousal maintenance (paragraph 10.5);

   (2)Valuations of the property of the parties (paragraphs 11 and 12);

   (3)Litigation funding or a “dollar for dollar order” (paragraphs 14 to 18);

   (4)The return by the husband to the wife of the sum of $16,253.63 (paragraph 19).

7. The wife does not press paragraphs 11 and 12 at this stage of the proceedings.  The husband agrees that if the parties are not able to reach agreement as to the value of the properties described in paragraphs 11.1.1 to 11.1.5, then E Group should be jointly instructed.  Whilst the husband considers that the value of some of the properties can be dealt with by agreement or the provision of other valuation reports thereby reducing the potential disbursement cost, it is generally conceded that valuations will need to be undertaken.

8. The wife does not press the valuations to occur at this time given her belief that the current financial circumstances arising from the COVID-19 pandemic may have temporarily depressed the property market and as such it is premature to value the properties.

9. The difficulty for the parties with this approach is that until the properties are the subject of either agreed value or valuation evidence, they are not able to advance settlement discussions.

10. For reasons that will be discussed, a realistic consideration of the value of the properties and the outstanding liabilities may provide a timely reminder to the parties that there is the potential for the future litigation costs to represent a significant proportion of the net pool of property available for division.  Without attempting to be prerogative to the parties, subject to the value of the husband’s interest in his periodontics practice, the property of the parties is modest.

11. Whilst no evidence was presented to support the wife’s concern that the property market may be temporarily depressed, I propose to do no more than to put in place the agreement of the parties as to the identity of the single expert valuers in respect of property but also as to the husband’s interest in the Mr Sappho Group of Companies.  It will be a matter for the parties or further order of the Court as to when the valuations are undertaken.

Background

1. The wife is 38 years of age and the husband is 47 years of age.  Both parties are in good health.  The wife is not currently employed and other than part-time work undertaken over a period of five weeks at the beginning of 2019.  She has not been in fulltime paid employment since the birth of the first child in 2010.

2. The husband is a self-employed healthcare professional and runs his own private practice styled as “P business”.

3. The parties commenced cohabitation in or about 2007/2008 and were married in 2009.  They separated in August 2019.

4. It appears uncontroversial that the wife provided the children’s primary care whereas the husband provided financially for the family.

5. The care arrangements for the children, at least on an interim basis, have been largely resolved by consent.  However, given the needs of the children, but in particular the diagnosis of Y with Type 1 Diabetes, it appears that her requirements are such that the husband does not seriously challenge the wife’s contention that her care of Y would not enable her to find employment.

6. The husband is the sole director of Q Pty Ltd in its capacity as the trustee for R Trust, T Trust and S Trust.

7. According to the husband, the income generated from the husband’s provision of services is received into P1 Pty Ltd, being an entity that does not hold assets.  Service fees from P1 Pty Ltd is then distributed to P2 Pty Ltd as trustee for W Trust and then to the husband.

8. Any profits from W Trust are then distributed to T Trust.

9. V Pty Ltd together with V Super Fund are the trustees to the V Trust being, V Super Fund.

10. The husband operates as a sole practitioner trading as P business from premises at M Street, Suburb N.

11. Following separation the wife and children remained in the former matrimonial home at F Street, Suburb G (“the Suburb G property”) whereas the husband moved to rental accommodation.

12. The husband concedes that the wife may well wish to retain the Suburb G property.

13. Whilst the subject of some disagreement, following the parties separation the husband met some of the family expenses including the mortgage over the Suburb G property, private school fees and related school expenses for the children and motor vehicle and other expenses.

14. Relevant to the wife’s application for interim spousal maintenance is the husband’s proposition that the COVID-19 crisis and the restrictions imposed by the professional association limited the professional services able to be rendered by the husband to urgent treatment only.

15. As at the date of the husband’s affidavit, being 21 April 2020, he deposes to no longer being in receipt of an income given that he temporarily closed his practice as the nature of his work is non urgent or emergency work.

16. The wife has limited knowledge of the manner in which the husband has structured his business.

17. At the time of separation she contends that the husband’s Westpac Business account had a balance of about $71,099 and a Westpac account styled as “the Children’s Account” had a balance of $31,000.

18. The wife complains that following separation her ability to access accounts for her own and the children’s expenses became more limited at the direction of the husband.  Since separation, whilst the husband had paid some of the household and children’s expenses, the wife did not receive any financial support.

19. During mid to late October 2019 the wife withdrew $30,000 from the Children’s Account.

20. The husband alleged that the money that had been in the children’s account was earmarked for the payment of their private school fees and other related expenses.

21. On 8 November 2019 the husband withdrew the balance from the children’s account of $16,253.  The parties are not in agreement as to the basis for each of their separate withdrawals from the Children’s Account.

22. The wife seeks that the husband transfer the balance of the children’s account retained by him to her.  The husband agrees to do so provided that the money is quarantined to assist in the payment of the children’s school fees.

23. The husband is liable to pay $519.68 per week by way of Child Support Assessment for the balance of the current period up to 19 February 2021.

24. The wife was in receipt of a Centrelink parenting benefit of $798 a fortnight, however, she has been told that her payments will stop in March 2020.  She has applied for a carer’s allowance for Y but is not certain as to the extent of the benefit.

Interim spousal maintenance

1. In the recent decision of Hall & Hall (2016) 257 CLR 490 the High Court set out the appropriate approach in considering an application for interim spousal maintenance as follows:-

   3.…The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That subsection provides that “[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, the other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)”.

   4.The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That subsection provides that, “[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part”.

   5.A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters (s 75(1)). Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as “the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment”. They also include, by virtue of s 75(2)(o), “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.

   …

   8.Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order “[t]he evidence need not be so extensive and the findings not so precise” as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to the relevant matters referred to in s 75(2).

   (Footnotes omitted)

2. As noted in Hall & Hall (supra), an applicant seeking orders for spousal maintenance carries the evidentiary burden.

3. In this case the husband concedes that the gateway requirement is satisfied.  That is, as a result of the wife’s role as homemaker and taking into account the health needs of Y, the wife is unable to support herself adequately as contemplated by s 72(1)(a) of the Act.

4. The issue then is to determine the following:-

   (a)To what extent is the wife unable to support herself as a result of having the care of the children under the age of 18 years;

   (b)What is the wife’s reasonable needs;

   (c)What capacity has the husband to meet a spousal maintenance order, if such an order were to be made; and

   (d)If (a) to (c) favour an order for spousal maintenance being made by the Court, what order is reasonable having regard to s 75(2) of the Act.

5. In Maroney & Maroney [2009] FamCAFC 45 the Full Court said at [56]:-

   Once a party … establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.

6. The Full Court in McCrossen & McCrossen (2006) FLC 93-283 at 80,838 [32] considered the definition of “adequately” and considered that it was:-

   not to be determined upon a “subsistence level” but upon consideration of whether the applicant can support himself or herself “adequately” importing a standard of living reasonable in the circumstances.

   (Citations omitted).

7. The wife’s financial statement filed 28 February 2020 indicates that she has average weekly income of $918, comprising a single parenting payment of $399 and the husband’s child support in the sum of $519.

8. The wife has indicated that the parenting payment may well change to a carer’s payment for the wife’s care of Y.  In any event, I am obliged to ignore a Commonwealth benefit or allowance when considering the wife’s income.

9. The wife has the advantage of a Child Support Assessment of $519, however, by reference to Part N of the financial statement the separate weekly expenses relating to the children total $581.  Exercising some level of discretion might well reduce some of the amounts, in particular the amount claimed for clothing and shoes, entertainment and the proportion of utilities consumed in the household, but it is open for me to find that the periodic child support paid by the husband is consumed by the children’s expenses.

10. The wife acknowledges that the husband meets the following weekly expenses:-

    (1)Westpac mortgage on Suburb G property  $413.76

    (2)Council rates  $  32.69

    (3)Emergency Services Levy  $    3.07

    (4)Lease payments for motor vehicle 1  $ 423.05

    (5)Motor vehicle insurance  $   23.80

    (6)Motor vehicle registration  $   17.00

    (7)Private health insurance (quarter)  $   28.69

    Total     $ 942.06

11. In addition, the husband also pays the educational expenses for the children at $666.44 per week, private health insurance (children’s component) of $57.38, speech pathology at $60, out of pocket medical expenses of $50, being a total of $833.82. 

12. For reasons previously given, I do not consider that it is proper to claim private health insurance as a children’s expense.  It is better dealt with as an expense of the wife and accordingly the amount attributed to health insurance should be removed from the children’s expenses and added to the wife’s expenses.

13. Over and above the child support paid, the further expenses paid by the husband total about $1,776.

14. In addition, the wife seeks a sum of $630 per week by way of periodic spousal maintenance.

15. By reference to the wife’s financial statement, she does not disclose any personal expenditure but does disclose Part N weekly expenses totalling $571.  Again, I am entitled to exercise my discretion and consider whether some of the expenses are not necessary for the wife to adequately maintain herself.  I have little evidence to assist in that determination, but doing the best I can I propose to discount some aspects of the wife’s expenses pertaining to food, car parking and clothing by a total sum of $50.

16. I find that the wife’s reasonable needs are represented by a weekly sum of $521.

1. The financial position of the husband is more nebulous.  By reference to his financial statement filed 21 April 2020, his average weekly income as disclosed is $306 per week with his total weekly expenditure at $5,199.

2. The husband concedes that the financial statement was completed at a time when he was effectively earning no income as a result of COVID-19 shutdown.

3. The husband acknowledges that prior to the current restrictions his income was substantial and he currently hopes that there are some signs of recovery.

4. It could not be said that there is any level of certainty as to the extent to which the husband’s pre-COVID-19 income will return.  It nonetheless is reasonable to find that the husband is a highly regarded dental specialist and has the ability to generate significant income in the appropriate climate.

5. The wife argues that the husband’s 2019 taxation return shows an income of $421,739.  The wife refers to document 2 in the wife’s book of documents[1] being an advice from a financial planner Ms BB.

   [1] Affidavit of Ms U filed 2 April 2020, annexure “A”, at page 26.

6. The projection as at 30 June 2019 of the husband’s income was in excess of $600,000.

7. By reference to document 1 in the wife’s book of documents,[2] being the husband’s tax returns for the year ended 30 June 2019, I note that from the husband’s total income of $421,739 there were deductions of $32,555 leaving a taxable income of $389,184 and following other taxation considerations notional tax was to be assessed at $164,103.

   [2] Affidavit of Ms U filed 2 April 2020, annexure “A” at page 6.

8. The calculations pertaining to the husband’s income, whilst relevant to the 2019 financial year are not necessarily indicative of his income stream in the 2020 financial year.

9. The total amount currently being paid by the husband both for the wife and by way of child support is $2,295 per week or $119,340 per annum.  The money currently being paid by the husband is presumably from after tax income.

10. In addition, the husband sets out his personal weekly expenditure of $5,199.  If the sum of $2,295 is deducted, the balance of the husband’s expenses is $2,904 of which $462 per week is by way of contribution to the V Super Fund.  The balance of the expenses appear to relate to the service of the liabilities of the parties and the various entities in respect of real estate held.

11. As presented by the husband, his total expenses significantly exceed his income although I am not able to make a finding as to his current or projected income, in particular as the restrictions are lifted and the husband is able to undertake more detailed, complex and presumably more remunerative dental procedures.

12. If the only consideration was whether the wife has established that the husband has sufficient income to meet a further spousal maintenance payment of $521 per week, her application would fail.

13. I am however able to consider the appropriate needs of the parties and if necessary I can resort to capital available or borrowings (if possible) to assist the wife.

14. As will be discussed when the focus turns to the wife’s application for litigation funding or partial property settlement, other than the equity available in the properties held by the parties or by entities controlled by the husband, there are no cash reserves available other than the sum of $16,253 withdrawn by the husband from the children’s account.  Whilst I appreciate that the money retained in the children’s account may have been earmarked to assist in the payment of the children’s school fees, nonetheless they are prioritised only as a result of the current agreement of the parties.  It may well be that a circumstance has been reached where the ability of the parties to accommodate the payment of the children’s private school fees, whilst desirable, is no longer viable.  That decision is a matter for the parties but I consider that the money currently held by the husband is an appropriate source from which the wife can receive lump sum spousal maintenance calculated by the weekly sum of $521 to be received by the wife for a period of about 31 weeks.

litigation funding

1. The wife seeks litigation funding in the sum of $50,000 or in the alternative that there should be a “dollar for dollar order” on the basis that the husband will cause to be paid an amount to the wife’s solicitors that match the amount he pays from time to time to his own solicitors.

2. The power to make an order for costs on an interim or final basis is set out in s 117 of the Act.

3. In the context of the current consideration it is a reasonable comparison to consider the steps necessary for an order by way of interim property settlement.

4. The following principles are relevant to the Court’s consideration:-

   (a)Together, s 79 and s 80(1)(h) of the Act confer a power on the Court to make orders for interim property settlements;

   (b)Section 79 confers a discreet power to make orders for property settlement and the Court may exercise the power conferred by s 79 through “a succession of orders until the power … is exhausted”[3] or until a final order dealing with all known property of the parties is made.

   [3]Gabel & Yardley (2008) FLC 93-386 at 82,957 [57].

5. The Court must be satisfied as to the following:-

   (a)That the application is genuine;

   (b)That the circumstances which identify the power are apparent; and

   (c)To weigh the identified need against the benefit of having only one exercise of a s 79 power.

6. The wife has fees owing to her solicitors of $29,726.75.  The husband’s fees are in a similar amount, however he has been able to pay those fees either from his income or from monies retained by him.

7. I accept the husband’s representation that he has exhausted all cash reserves.

8. The submission of the husband’s counsel was that the wife’s application for litigation funding or partial settlement of property should be considered against a level at which the wife’s solicitors have charged her and in any event, if her current solicitors are not prepared to act for her without being paid for services rendered, then she should find other solicitors who would be prepared to so act.

9. Counsel did not have instructions as to whether the wife’s solicitors were prepared to accept instructions on the basis that they would be paid at some later date or upon final determination of the proceedings.

10. The position in which each of the parties find themselves, but in particular the wife, is unacceptable.

11. It is important that not only justice be done but that it be seen to be done and in particular there should be a “level playing field” as between the parties.  It would be an invidious position for the wife to be without representation in circumstances where the husband is able to be represented.

12. There is a financial disparity between the parties by sheer dint of the greater capacity of the husband to earn income.

13. Given his professional qualifications, it may well be the case that solicitors would be more likely to represent the husband than the circumstances in which the wife finds herself.

14. During the course of the proceedings the Court was directed to page 28 of the affidavit of Ms U filed 2 April 2020, being document “2” of the wife’s book of documents.  Document 2 is a statement of advice from Z Pty Limited.

15. According to the statement of advice, as at September 2018 the assets and liabilities of the parties were as follows:-

Assets
Suburb G property (joint)	800,000
L Street apartment (T Trust)	400,000
Suburb D (husband)	670,000
H Street (50 percent W Trust)	800,000
Partnership in Suburb K townhouses (33.33 percent T Trust)	383,295
Total Assets	$3,053,295
Liabilities
Home mortgage (joint)	400,000
L Street apartment	360,000
L Street overdraft	50,000
Suburb D loan	329,000
H Street loan	740,000
Suburb K townhouse liability	217,210
Total Liabilities	$2,096,210
Balance	$957,085

1. If the self-managed superannuation fund is brought to account there is approximately $942,000 of further value, but that is not available to the parties until and unless they satisfy a condition of release.

2. Accordingly, the property available to the parties is modest and in any event is likely to be subject to complex financial arrangements which would make the investment properties, other than the Suburb D property, difficult to dispose of.

3. I consider that the property of the parties is likely to be relatively modest.  I do not ignore that the value attributed to the various properties will have changed since September 2018.  I have not been assisted by the parties as to the likely value of the properties nor the current level of liability, but given the description of the properties remain the same, it should not be beyond the ability of the parties with legal advice to ascertain that there is the potential for the parties legal fees to represent a significant proportion of the net assets of the parties.

4. I do not overlook that the husband’s interest in his sole periodontal practice has not been valued.

5. The wife seeks the sum of $50,000 to assist in the payment of her legal fees both past and what is likely to be incurred going forward.  The amount is not unreasonable and given the orders that each of the parties seek, but in particular the recognition by the husband that on his case the wife should receive 55 percent of the net asset pool, the amount she will ultimately receive will exceed the lump sum that she now seeks.

6. The difficulty is that there is not a ready source from which that payment can be made.

7. The Suburb D property has been identified as being owned by the husband with a current mortgage that is likely to leave substantial equity available.

8. The parties, but in particular the husband, will need to consider whether in the parlous circumstances in which they now find themselves, that it is inevitable the Suburb D property will need to be sold.

9. I propose to order that the husband pay to the wife’s solicitors for and on her behalf the sum of $50,000 within 30 days and in default of payment then the property at B Street, Suburb D will be placed on the market for sale by public auction or private treaty upon such terms and conditions as the parties may agree and from the sale of the property each of the parties will receive the sum of $50,000 with the balance to remain in an account styled in the joint names of the parties.

should the husband personally supervise the children at all times?

1. The wife concedes that it is only during school holiday periods that the husband should personally supervise the children.

2. The husband does not suggest that he intends to have the children cared for by other people for extended periods of time.  He does not suggest that he will undertake any employment during the school holiday period during which the children are with him.

3. The parties have equal shared parental responsibility for the children.  The Court is entitled to assume that each of the parties are not likely to place the children at risk.  The father is a highly qualified health professional and it is not suggested by the wife that he is not able to appropriately care for the health needs of the children, but in particular Y.

4. The order that the wife seeks requires a consideration of the provisions of s 60CC of the Act, both as to the primary considerations but also the additional considerations.

5. In giving careful consideration to the ongoing arrangements for the children to live with the mother and spend time with the father, I do not find that there are any circumstances which would justify an unnecessary restriction on the father in terms of allowing him to use his best judgement as to the appropriate care arrangements for the children.

6. I do not consider that the order that the wife seeks is in the children’s best interests and I accept the assurance by the husband that any occasion that others may care for the children will be of very limited duration.

7. I make orders as appear at the commencement of these reasons.

I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 17 June 2020.

Associate: 

Date:  17 June 2020